What Was the Basis for Ensign’s FEC Fines? | Davidson

Q. I have a question about the fines recently levied against former Sen. John Ensign and his parents by the Federal Election Commission. I thought that the FEC dropped its case against the Ensigns years ago. If that’s right, what changed between then and now that resulted in fines?

A. Your confusion is understandable. The investigations following Ensign’s extramarital affair with a former campaign staffer have taken many twists and turns over the years. And, while those investigations have of course subjected Ensign to legal costs and other burdens, last month was the first time that they resulted in an official penalty.

In 2009, soon after news of Ensign’s affair with campaign staffer Cynthia Hampton became public, the Federal Election Commission, the Department of Justice and the Senate Ethics Committee all began investigations. A key focus was a $96,000 payment made by Ensign’s parents to Hampton and her family in May 2008, shortly after the affair was discovered by Hampton’s husband, among others.

At issue was whether the payment was severance for Hampton upon termination of her employment from Ensign’s campaign, in which case it would have counted as a campaign contribution.

As such, the amount of the payment would have exceeded Ensign’s parents’ annual limit on campaign contributions to an individual campaign and also should have been disclosed as a campaign contribution, which it was not. Ensign was under investigation for possibly conspiring with his parents to violate these restrictions.

In November 2009, the FEC dropped its investigation. Although circumstantial evidence existed suggesting the payment may have been severance, the FEC relied on sworn affidavits signed by Ensign’s parents and Ensign stating that the payment was a gift made “out of concern for the well-being of long-time family friends” after learning of the affair. “It is doubtful,” the FEC concluded, “that an investigation would produce any additional evidence that would contradict or outweigh” the affidavits. Soon after the FEC ended its investigation, spokespeople for Ensign announced that the DOJ had done the same.

Meanwhile, the Senate Ethics investigation continued. In 2001, just before Senate Ethics Committee staff was scheduled to interview Ensign, he resigned.

Although Ensign’s resignation meant he could no longer be subject to discipline by the Senate or the Ethics Committee, the committee nevertheless completed its investigation and issued a report concluding that Ensign may have violated several laws. There was “substantial credible evidence,” the report stated, that the payment from Ensign’s parents to Hampton was indeed severance. The committee recommended that the FEC and the DOJ both reopen investigations of Ensign. They did.

The FEC investigation culminated earlier this year. In a February memorandum, the FEC stated that “substantial new evidence” from the Senate Ethics investigation casts doubt on the credibility of the Ensigns’ affidavits and supports the conclusion that at least part of the payment to Hampton was meant to compensate her for termination from her employment on Ensign’s campaign.

Whether a payment is a gift, the memorandum states, turns on whether it is “rooted in detached and disinterested generosity” or is rather meant to serve some other purpose “such as to lessen the impact of a job loss.”

The memorandum cites testimony by staffers and others that Ensign made “repeated references to the payment as severance,” resulting in a “near universal understanding of the payment to be related to Cynthia Hampton’s lost job.” The evidence, the memorandum also concludes, cast serious doubt on the affidavit’s denial that severance was even “suggested” in conversations between Ensign and his parents. For example, the memorandum cites evidence that Ensign negotiated the payment amount with Hampton’s husband as part of an “exit strategy” and made a journal entry near the time of the payment stating: “I did not want the government to have to pay any severance pay, or the campaign,” and “I went to my dad, and he said he would rather give them some money as a gift.”

Shortly after the FEC memorandum, Ensign and his parents settled the case with the FEC, and, without admitting to legal liability, agreed to pay fines.

As part of the settlement, Ensign’s campaign amended its disclosure reports to acknowledge that a portion of Ensign’s parents’ payment to Hampton was a contribution to the campaign.

Meanwhile, the fate of the DOJ investigation remains uncertain. Perhaps most significantly, the FEC used the term “misleading” to refer to the affidavits Ensign and his parents submitted to the FEC.

Misleading statements to the government are just the type of thing that can capture the DOJ’s interest. So, yes, the FEC did drop its investigations of Ensign and his parents in 2009. But, more than three years later, the Ensigns still may not be out of the woods. Stay tuned.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.